Adventures in administrative law, cont’d

FNC’s Wendell Goler asked Obama administration flack Jay Carney about the Obama administration’s suspension of the Obamacare employer mandate for one year. The Obamacare statute expressly provides a commencement date of January 1, 2014. Whence the legal authority on the part of the president to postpone it? The video of Goler’s exchange with Carney is below.

Goler asks a good question, one directly raised by Michael McConnell’s Wall Street Journal column “Obama suspends the law.” Former Judge McConnell is of the opinion that President Obama lacks the authority to suspend enforcement of the law. On this point, as it happens, Judge McConnell is in accord with retiring Democratic Senator Tom Harkin, whose negative opinion provides the premise of Goler’s question.

The administration’s announcement of the suspension by Assistant Treasury Secretary Mark Mazur was silent on this point. This is not a criminal proceeding. The administration does not have the right to remain silent on this point without our drawing negative inferences against it.

According to Carney, the answer, my friend, is blowing in the Federal Register, in which are to be found many examples of regulatory delay. What regulation authorized the suspension? Goler unfortunately does not ask for a citation and Carney does not offer one. Moreover, as a general proposition, the legal authority for a regulation must be drawn from a statute. What statute authorized the regulation?

Mazur refers to certain regulations in his announcement, but the regulations cited in his announcement are not even yet in existence. They are aborning. Thus the reason for the delay. Is that what Carney is talking about?

I’m pretty sure Carney does not in fact know what he’s talking about. My guess is that he doesn’t have a clue. He does, however, manage to keep his lips moving and to turn the question into a pretext for an attack on Republicans (for their bad attitude). This was sufficient unto the task for today’s press conference, which Carney left unscathed, or barely scathed.